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The newspaper sought the e-mails as part of its reporting on the financial troubles at Hunter, which is an Urban Indian Health program that also serves low-income patients.

Within hours of The Eagle filing the request, former Hunter board chair Jaya Escobar and other clinic leaders reached out to their attorney. According to their e-mails, they had concerns that the e-mails contained sensitive information about the clinic’s finances, personnel and potential legal issues with the former CEO.

Hunter received a temporary restraining order to block Wichita State from releasing the records.

Eventually, the case went before Sedgwick County District Court Judge Faith Maughan, who ruled in February 2014 that Hunter had standing as a third party to block the records request.

As part of her decision, she also said the e-mails are owned by the university employees who wrote them and not WSU and therefore are not public records.

The Eagle appealed Maughan’s decision to the Kansas Court of Appeals.

In November – nearly 2 1/2 years after the initial request was filed – the appeals court ruled in favor of The Eagle. The court found Hunter, as a third party, had no right to bring an action under the Kansas Open Records Act.

“KORA is a sword to obtain access to the public record, not a shield to prohibit access to private records. Hunter asked the district court to do the latter,” the court wrote.

Hunter’s board decided not to appeal the decision to the Kansas Supreme Court.

Instead, it turned over the e-mails and talked about the clinic’s finances and the measures taken to fix them.

Case ruling

Because it ruled that the case should be dismissed due to Hunter’s lack of standing, the court’s decision did not address questions about who owns e-mails on public servers, which would have been helpful for those interested in open records and employment law.

It also did not answer whether e-mails dealing with private business on public servers are public.

“That’s something that will have to be dealt with at some point in KORA or elsewhere in Kansas law,” said Lyndon Vix, attorney with Fleeson Gooing, who represents The Eagle.

Currently, Kansas legislators and the judicial council are considering updating the open records law.

Attorney Alan Rupe, who represented Hunter in the lawsuit, said it’s time for the law to be updated to “reflect current realities.”

“A lot has changed since the legislation was first adopted in 1984,” Rupe wrote in an e-mail. “With e-mail and electronic documents composing a large part of the records that are now subject to KORA, there are new issues, like the ones raised in this lawsuit, that simply are not addressed by the statute’s current language.”

The Kansas Open Records Act varies from other states’ open records laws in that it defines a public record not primarily by its content, but whether a public agency possesses the record. Most states define it by its content.

There are tradeoffs with that, Vix said.

“In this case, if we had an open records law like most other states, there’s likely no way to get the Hunter e-mails because they didn’t deal with the public business of WSU. But because the WSU system stored the e-mails, we had a strong basis under Kansas law to argue that they are open records,” Vix said.

WSU’s technology policies advise users that they cannot expect information on the university’s system to remain private and that the information may be subject to disclosure under the open records law.

Future impact

David Moses, general counsel for Wichita State University, says he thinks the law should be changed to focus on whether the content is public record, not necessarily where it’s stored.

“It’s really do you look at the substance of the record or do you look at the source of the record?” Moses said.

He suggests lawmakers consider adding a procedure to give third parties a chance to quash their records from being disclosed by public agencies.

Vix’s advice to the average person filing a record request? Good luck.

“I have read so many denials of KORA requests it’s really kind of discouraging when you think about the fact that this is supposed to create transparency and the way our system is set up, it’s so easy for an agency to deny. I don’t think KORA is fulfilling its purpose in many instances.”